University basketball player must travel outside of U. S. to play games, but F1 visa expired several years ago.

Question: I am a 20-year-old citizen of Nigeria, and I came to the United States as a student in 2011. My F1 visa was issued in 2011, but it expired in 2013. Since my entry into the United States, I have remained in the country to continue my education.

Currently, I am a student athlete at a university located in New York State. I play basketball for the university’s division I basketball program. In two weeks, my team is scheduled to play four games outside of the United States: The first and second games are to be played in Canada, and the third and fourth games are to be played in the Bahamas.

If I leave the United States to play any of the games on an expired F1 visa, do I risk being unable to return to the United States to continue my education? Can I apply for a new F1 visa closer to where I go to school, or must I return to Nigeria to obtain a new visa?

Answer: Thank you for your question. I am glad that you reached out before traveling outside of the United States for any of your games, or applying for a new visa at a nearby consulate as a Third Country National. If not handled properly, either option could have an undesirable result, which we obviously want to avoid. Please call my office immediately to discuss your case. In the meantime, I have provided some information below for your review. We will discuss the following information in detail during our consultation.

Applying for a new F1 visa as a Third Country National

Applying for a visa in a country that is not your home country (called a “third” country) can be more difficult than applying at home. If you choose to travel with an expired visa to a third country, you need to consider the following risks: (1) you may be required to stay multiple days until a decision is made on granting you a visa, (2) If your application is delayed for a security check or other administrative reason, you will not be allowed to reenter the United States while you are awaiting your visa application to be processed (the duration of such delays range from a few weeks to several months), (3) if your visa application is not approved, you may not be able to return to the United States, and (4) if your visa application is rejected, you will be required to return to your home country directly to reapply without reentering the United States first.

Based on the facts you provided in your question, applying for a new visa at a nearby consulate may be too risky. In particular, I am concerned about timing issues. As you stated above, you are scheduled to travel in two weeks. With such a short turn around, and the associated risks outlined above, I do not believe that applying at a nearby consulate (e.g., the U.S. Consulate Toronto, Canada) would be your best option. 

Automatic visa revalidation

The more prudent step at this point, considering your time constraints, may be to automatically revalidate your expired F1 visa. 22 C.F.R 41.112(d). You can usually revalidate an expired visa automatically when returning from a visit of less than thirty (30) days to Canada, Mexico, or one of the islands adjacent to the United States (other than Cuba) provided that you have a valid Form I-20 and a valid unexpired Form I-94. This process revalidates your visa (making you eligible for a single trip), but it does not renew it.

However, if you meet any of the following, you will not be able to automatically revalidate your visa: (1) you applied for a new visa and the Department of State has not yet issued it to you, (2) you applied for a new visa and the Department of State denied your application, (3) you have a terminated SEVIS record indicating that you are out of status, or (4) you have been out of the United States for more than thirty (30) days.

In order to take advantage of automatic visa revalidation, you must meet the following requirements:

  • Be readmitted from a continuous territory or adjacent island (except Cuba)
  • Be readmitted after an absence not exceeding 30 days
  • Possess a Form I-94 endorsed to show an unexpired period of initial admission or extension of stay or possess a Certificate of Eligibility Student and Exchange Visitor Information System (SEVIS) I-20AB or SEVIS DS-2029
  • Possess a valid passport, unless exempt
  • Do not require authorization for admission under INA § 212(d)(3)
  • Have not applied for a new visa abroad
  • Have maintained and intends to maintain nonimmigrant status

It should be noted that the provisions of the automatic revalidation of visas is not available to citizens of countries identified as supporting terrorism in the State Department’s annual report to Congress. Citizens from the following countries are currently ineligible: Iran, Syria, Sudan, and Cuba. 

Border advocacy to facilitate automatic visa revalidation

Located near three major ports of entry (Peace Bridge, Rainbow Bridge, and Lewiston-Queenston Bridge), our office is in a unique position to help advocate on your behalf before departing the United States. If necessary, we can submit a brief to immigration officials outlining your eligibility for automatic visa revalidation, in an effort to remove as much uncertainty from your situation as possible.

Conclusion

Before departing the United States to attend any of the basketball games, please contact the office so we can discuss your case in greater detail. You can reach our office by calling (716) 565-6270, or by emailing me at nmurchie@murchielaw.com. Also, you will likely need a visitor visa for both Canada and the Bahamas to enter either country. I look forward to speaking with you.

CASE UPDATE

We were pleased to be able to assist the individual mentioned in above email. Due to timing issues and the risks associated with renewing a visa in at a nearby consulate, we thought it best for the individual to use the provisions of automatic visa revalidation. The individual was able to play both games in Canada, but was unable to travel to travel to the Bahamas because Bahamas immigration required a valid unexpired F1 visa before issuing a visitor visa. Finally, we were able to help facilitate the individual’s readmission to the United States by submitting a brief to Customs and Border Protection (CBP) officials at the Peace Bridge Port of Entry.

Immigration Judge grants Clients permission to withdraw applications for admission, removal order avoided

Clients, a Canadian family, were placed into removal proceedings pursuant to INA § 212(a)(7)(A)(i)(I). Pursuant to INA § 212(a)(7)(A)(i)(I), an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General, is inadmissible.

Background

In 2009, Clients moved from Africa to Canada and became permanent residents. Clients were later admitted into the United States as lawful permanent residents on January 24, 2013. After being admitted as lawful permanent residents, Clients remained in the United States for one week before returning to live in Canada. Over the next 19 months, Clients were admitted into the United States (together) as lawful permanent residents, approximately four (4) times, to shop and visit family. Each trip varied in length from one (1) to two (2) weeks in duration. After each trip, Clients would return to Canada.

In 2014, Clients applied for admission into the United States as lawful permanent residents. Clients were questioned and then directed to secondary inspection. During secondary inspection, U.S. Customs and Border Protection (“CBP”) officers questioned Clients about their status. Based on Clients’ answers, CBP officers concluded that Clients had not maintained their permanent resident status. Clients acknowledged that at that time they were unable to move to the United States and take up residence. As a result, Clients each signed a Form I-407, Abandonment of Lawful Permanent Resident Status, in order to conclude the encounter and return to Canada. Clients became Canadian citizens in late 2014.

In 2015, Clients returned to the U.S./Canada border to reclaim their permanent resident cards and enter the United States as lawful permanent residents. Clients were questioned and then directed to secondary inspection. During secondary inspection, Clients admitted to each having signed a Form I-407, Abandonment of Lawful Permanent Resident Status; however, Clients stated that they believed that by signing the forms they were only “temporarily” leaving their permanent resident cards in possession of immigration officers, until they were able to take up residence in the United States. Clients mistakenly, but honestly, believed that once they were ready to take up residence they could return to the border, collect their permanent resident cards, and apply for admission into the United States as permanent residents.

When asked by immigration officers why they agreed to abandon their permanent resident status and sign a Form I-407, Clients provided several reasons, such as a desire to end the inspection process and avoid having to return to Buffalo to appear before an immigration judge, and the misplaced belief that the Form I-407 was only “temporary” in nature. At the conclusion of the border encounter, Clients gave a sworn statement and requested a hearing before an immigration judge to regain their permanent resident status.

Clients were issued a notice of hearing to appear before the Immigration Court in Buffalo, New York. As counsel, I filed a Motion to Continue Master Calendar Hearing on behalf of clients in order to review the Clients’ claims to permanent resident status. The Court granted the Motion and scheduled a new Master Hearing.

After reviewing Clients' case, it was clear that they could not sustain a claim to permanent resident status, and that they should request to withdraw their applications for admission in order to avoid a removal order.

Clients were Eligible for Withdrawal of their Applications for Admission to the United States

Before an Immigration Judge, I requested that my Clients be allowed to withdraw their applications for admission to the United States.

Title 8 C.F.R. § 1240.1(d) authorizes an immigration judge to grant permission to withdraw an application for admission.  Specifically, the regulation states: 

An immigration judge may allow only an arriving alien to withdraw an application for admission. Once the issue of inadmissibility has been resolved, permission to withdraw an application for admission should ordinarily be granted only with the concurrence of the Service. An immigration judge shall not allow an alien to withdraw an application for admission unless the alien, in addition to demonstrating that he or she possesses both the intent and the means to depart immediately from the United States, establishes that factors directly relating to the issue of inadmissibility indicate that the granting of the withdrawal would be in the interest of justice.

In the present case, Clients met the requirements of section 1240.1(d). First, Clients were “arriving alien[s].” Second, I spoke with the Office of Chief Counsel, who represent the government in Immigration Court, and secured an agreement that they would not oppose my request.

Third, Clients were able to demonstrate that they possessed both the intent and means to depart the United States immediately because they were firmly established in Canada.

Fourth, granting Clients’ request for permission to withdraw their applications for admission would be in the interest of justice. In particular, Clients’ only ground of inadmissibility was pursuant to INA § 212(a)(7)(A)(i)(I) as immigrants not in possession of valid entry documents.

Conclusion

Fortunately, the Immigration Judge granted Clients' request for withdrawal and terminated removal proceedings. As Canadian citizens, Clients wished to avoid being ordered removed so they could make temporary visits to the United States for pleasure, without first having to seek permission to reapply for admission into the United States (Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal).

If you have a similar border situation, please contact the office for a thorough review your case. We look forward to hearing from you. 

 

Young client successfully immigrates to the United States with Immigrant Visa Process (IVP) to live with LPR mother

In early 2016, a mother, citizen of the Dominican Republic and U.S. lawful permanent resident, came to my office to discuss her young daughter’s immigration situation. By the time we spoke, the daughter, age fourteen, had been living in the United States for over a year without any status. The mother had previously filed a Form I-130, Petition for Alien Relative, and needed help with completing the process to obtain lawful permanent residence for her daughter.

I spoke with both the mother and daughter together to better understand the disposition of the daughter’s immigration situation. The mother stated that two (2) Form I-130 petitions were filed on behalf of her daughter: the first petition was filed by the daughter’s U.S citizen stepfather, but received a Request For Evidence (RFE) and was not pursued further; and the second petition was filed in 2013 by the mother (under preference category F2A), which was ultimately approved in 2015.

The mother explained that in 2014 the daughter came to the United States for a visit, but remained only after the daughter’s living situation changed in her home country of Aruba. Specifically, the daughter was living with her grandmother in Aruba; however, during the daughter’s visit her grandmother fell ill and moved to the Netherlands leaving the daughter with no where to live.

After verifying the existence of an approved Form I-130, Petition for Alien Relative, I explained the options available to the daughter to obtain lawful permanent residence. Based on the facts of the case, I provided three options to consider, each having their own costs, risks, and benefits. The options included: (1) mother naturalizing and daughter adjusting her status within the United States, (2) applying for an immigrant visa through the Immigrant Visa Process (IVP), or (3) having daughter apply for Special Immigrant Juveniles (SIJ) status. Based on the wishes of the mother, we decided to pursue an immigrant visa through the Immigrant Visa Process (IVP).

As with the other options, the immigrant visa process had risks. My main concern was that after the daughter departed the United States to attend her immigrant visa interview, she would be denied an immigrant visa and then be unable to return to the United States. It is important to note that the daughter was in the United States without status for over a year. As result, she may have accumulated unlawful presence, which would bar her from reentering the United States after she departed for her immigrant visa interview. Fortunately, due to her age, she did not accrue unlawful presence and thus was not subject to INA § 212(a)(9)(C).

Another issue the mother needed to address was the requirement to prove that she had adequate financial means to support her daughter. At the time, the mother was unable to meet the financial threshold set out in the Form I-864P, Poverty Guidelines on her own. However, after learning that the mother also shared a residence with her U.S. citizen brother, she was able to combine both her and her brother’s income to meet the financial threshold. Thus, in addition to the mother filing a Form I-864, Affidavit of Support, her brother also submitted a Form I-864A, Contract Between Sponsor and Household Member.

In March of 2016, mother paid the required fees and submitted all IVP paperwork for processing. The daughter’s immigrant visa interview was subsequently scheduled and travel plans were made. Last week, I was delighted to hear that the daughter attended her visa interview and was granted an immigrant visa. Daughter returned to the United States this week as a lawful permanent resident. Daughter told me she looks forward to enjoying her summer vacation before returning to school as a high school freshman. I wish her the best!

Obtaining lawful permanent residence can be tricky, so be careful. If you or someone you know is facing a similar situation, please call my office and set up a consultation to speak with me.